Volschenk v Commission for Conciliation Mediation and Arbitration and Others (JR298/18) [2020] ZALCJHB 16 (31 January 2020)

Volschenk v Commission for Conciliation Mediation and Arbitration and Others (JR298/18) [2020] ZALCJHB 16 (31 January 2020)

The commissioner failed to apply the correct legal test for prospects of success in condonation applications. He did not consider whether the applicant had a reasonable expectation of renewal under section 186(1)(b) of the LRA, nor did he assess the relevant factors such as the duration and continuity of employment, the terms of the contracts, and the nature of the applicant's work. The subjective expectation of renewal was undisputed, and the commissioner did not evaluate its objective reasonableness. By simply relying on the expiry of the fixed term contract, the commissioner ignored the statutory definition of dismissal and failed to consider whether the applicant had made out a prima...

Citation
[2020] ZALCJHB 16
Parties
Applicant: Cornelius Gabriel Volschenk; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Commissioner Paul Phundu N.O; Respondent: Deloitte Consulting (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
31 January 2020
Case Number
JR298/18
Procedural Posture
Review Application / Application to Review and Set Aside a Rescission Ruling Refusing Condonation for Late Referral of Unfair Dismissal Dispute.
Outcome
Application for review granted; commissioner’s ruling refusing condonation set aside and substituted with an order granting condonation.
Judges
Van Niekerk
Legal Topics
Unfair Dismissal, Fixed Term Contracts, Reasonable Expectation of Renewal, Condonation, Prospects of Success
Labour Law Unfair Dismissal Fixed Term Contracts Reasonable Expectation of Renewal Condonation Prospects of Success

Case Brief

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Parties

Cornelius Gabriel Volschenk

Applicant

Commission for Conciliation Mediation and Arbitration

Respondent

Commissioner Paul Phundu N.O

Respondent

Deloitte Consulting (Pty) Ltd

Respondent

Procedural Posture

Review Application / Application to Review and Set Aside a Rescission Ruling Refusing Condonation for Late Referral of Unfair Dismissal Dispute.

Legal Issues

  1. 1 Whether the commissioner applied the correct test in assessing the applicant's prospects of success for condonation of late referral.
  2. 2 Whether the applicant's employment termination constituted a dismissal under section 186(1)(b) of the LRA.
  3. 3 Whether the commissioner reasonably concluded that the applicant had poor prospects of success.

Ratio Decidendi

The commissioner failed to apply the correct legal test for prospects of success in condonation applications. He did not consider whether the applicant had a reasonable expectation of renewal under section 186(1)(b) of the LRA, nor did he assess the relevant factors such as the duration and continuity of employment, the terms of the contracts, and the nature of the applicant's work. The subjective expectation of renewal was undisputed, and the commissioner did not evaluate its objective reasonableness. By simply relying on the expiry of the fixed term contract, the commissioner ignored the statutory definition of dismissal and failed to consider whether the applicant had made out a prima...

Court Disposition

Application for review granted; commissioner’s ruling refusing condonation set aside and substituted with an order granting condonation.

Orders

  • The condonation ruling issued by the second respondent on 12 January 2018 is reviewed and set aside.
  • The ruling is substituted by the following: 'The late referral of the applicant’s unfair dismissal dispute is condoned'.